Republicans Would Like You to Know How Unfairly They've Been Treated

Supreme Court nomination hearings no longer have much to do with the actual records of the nominees, so everything is about The Process, and Previous Processes. Well, Josh Hawley has gone for some sex-offender smears, and the Republican Party's official channels have gone for the uncut stuff that lays bare the essential function of the "CRT" hysteria: as an all-purpose tool of racial reaction. But mostly, the hearings have been about how previous hearings weren't fair to previous nominees, likely an attempt to redraw the out-of-bounds lines on future nominations because, by-and-large, Republicans have decided against a truly scorched-earth strategy on this one. Many Republican senators have voted to confirm Judge Ketanji Brown Jackson to lifetime appointments previously, and this is ultimately a process to determine whether she'll get to watch up-close as the right-wing Court majority they engineered makes the law. The bonus of holding back a bit here is that they can point to their restraint now if they have to unleash the hounds of hell in the future—say, to block a nomination that would actually change the makeup of the court.

But the whole meta-commentary vibe to the hearings is interesting. There have been, inevitably, the allusions to the hearings into Brett Kavanaugh's nomination, including an opening statement from Ted Cruz where he reassured Jackson that "no one is going to inquire into your teenage dating habits." Look, if you don't think Kavanaugh did what Christine Blasey Ford accused him of doing, or you don't think it should affect his candidacy for the Court, you should say so. But it would help to actually grapple with what Ford said happened. Also, are we just never again going to mention the baseball tickets? This guy really fuckin' loves the Nationals.

Then there were the allusions to the failed 1987 nomination of Robert Bork, whom conservatives have refashioned into perhaps the first victim of Cancel Culture, to the point that they made up the term "borked" for someone whose Supreme Court bid is torpedoed unjustly. At no point does anyone mention Bork's actual record, which was incredibly extreme, that he received a full vote in the Senate and simply lost, or the amazing notion that he was ever nominated in the first place considering the vital role he played in Richard Nixon's Saturday Night Massacre during the Watergate investigation. As a refresher, Nixon's attorney general and deputy attorney general both resigned rather than carry out his lawless order to fire the special prosecutor investigating Watergate. But Bork, the solicitor general and third in line, did what Nixon asked.

And then there's the most recent example of supposed nomination injustice: the case of Amy Coney Barrett. The law of simultaneous conservative victory and victimization has never been in fuller effect. Barrett was bum-rushed onto the Court a week before Election Day in 2020, four years after Republicans refused to even debate the nomination of Merrick Garland eight months before the election on the basis it was too close to the election. Yes, let the voters decide—unless, as in 2020, they've already started voting, in which case fuck them, you're filling the seat, because you put up with Donald Trump for half a decade with this exact light at the end of the tunnel. It was the purest distillation of the power politics at the heart of these Supreme Court battles, not least because Barrett's resumé was thin, though compared to some of the people Trump stuffed in the federal judiciary, she was immensely qualified. Anyway, Tuesday's second round of hearings saw Lindsey Graham play the victorious victim grievance tune with respect to...Barrett and religion.

"How would you feel if somebody up here on our side said, 'You know, you attend church too much for me,' or, 'Your faith is a little bit different to me,' and they would suggest that it would affect your decision[s], would you find that offensive? ... I would, if I were you. I found it offensive when they said it about Judge Barrett."

Considering the standard-bearer of Graham's party, whom he serves like a little toad at every opportunity, suggested we should ban Muslim people from entering the United States, this is more than a bit much. Graham gestured at imposing a religious test on Jackson as a rhetorical ploy to get to his gripes about Barrett, but the most recent Republican president routinely cast followers of Islam as fundamentally un-American, incapable of adopting the values undergirding the American experiment. (This is the same stuff fueling the "sharia law" hysteria.) Trump presided over crowds that chanted for Muslim-American members of Congress to be sent back to where they came from.

But let's take Graham at his principled word here. The question of whether a Supreme Court nominee's religion matters is an intriguing one. If Joe Biden nominated a Satanist for the Court, one gets the sense Graham would raise an objection. If he nominated someone who thought sharia law should overrule the Constitution, that would be a problem. The idea that this all exists on a binary—Religious or Not Religious, or even a sliding scale between the two—does not seem accurate. The indications are that Jackson is a mainstream unaffiliated Protestant. What people flagged about Barrett is that she was a member of a bizarro Catholic splinter group. That doesn't mean she can't be a good judge, but the idea we can't discuss it is absurd. Democratic Senator Dianne Feinstein blew it on this score a few years back, though, so Republicans got ahead of it quite effectively when it came time to use the battering ram to get Barrett on the Court.

And we should stop pretending that religion plays no role in the American judicial system. The opposition to abortion is fueled almost exclusively by religious groups, and the engineered majority is made up almost entirely of conservative Catholics who will defenestrate precedent to reverse or severely damage Roe v. Wade—and possibly, it increasingly appears, Griswold v. Connecticut. All decisions within our system should be made with a regard to secular law, not the principles of any one religious faith, but that doesn't mean they are.

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